Commercial Arbitration and Alternative Dispute Resolution

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1 SUBJECT DETAILS: Commercial Arbitration and Alternative Dispute Resolution (3 credits total)

Data on the subject

Name Commercial Arbitration and Alternative Dispute Resolution

Degree Postgraduate in Master in International and European Business Law

Year 2015-16

Nature Fall

ECTS Credits 20 HOURS = 2 CREDITS

Department Law

Area Law

Teaching staff María Isabel Rodríguez Vargas & José Ángel Rueda García

Data on the teaching staff

Teaching staff María Isabel Rodríguez Vargas & José Ángel Rueda García

e-mail misabel.rodriguez@cuatrecasas.com / joseangel.rueda@cuatrecasas.com Telephone (+34)915247175 (both)

Office Cuatrecasas, Gonçalves Pereira Almagro, 9

Madrid 28010 Spain

Tutoring Schedule Upon request from students

SPECIFIC DATA ON THE SUBJECT

Pre-requisites None

Contribution of the degree to the professional profile

Education in the adjudication of international disputes involving a sovereign State through alternative dispute resolution mechanisms

2015-16 COURSE DESCRIPTIONS

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2 COMPETENCES TO BE IMPROVED

What skills you´ll gain from this class:

Familiarisation with general international law (particularly, responsibility of States for internationally wrongful acts) and international investment law from both theoretical and practical viewpoints

THEMATIC AREA AND CONTENT

AREA 1: Introduction

Theme 1: Introduction to international investment arbitration 1.1 Evolution and concept of investment arbitration

1.2 Standards of protection and causes of action in investment arbitration AREA 2: Development of an investment arbitration proceeding

Theme 1: Investment Arbitration Regimes: Consent

1.1 Investment arbitration under treaties and investment laws 1.2 Contractual investment arbitration

1.3 ICSID

1.4 Other international fora (PCA, SCC, ICC, UNCITRAL, LCIA) Theme 2: Arbitration procedure

2.1 Institution of proceeding: forum selection and pre-requisites 2.2 Jurisdictional objections and defences

2.3 Remedies (types of claims)

2.4 Procedural issues: proceeding, written and oral phases, fact and expert witnesses 2.5 Governing law

Theme 3: Substantive standards of protection

3.1 Fair and equitable treatment and full protection and security 3.2 Expropriation

3.3 Non-discrimination

3.4 Other standards: national treatment, most-favoured-nation treatment Theme 4: Damages

4.1 Methods of valuation 4.2 Specific issues

AREA 3: Awards and Post-Award Remedies Theme 1: Awards

1.1 Jurisprudence: the role of precedent in investment arbitration 1.2 Form of Awards

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3 1.3 Costs and funding

Theme 2: Post-Award Remedies

2.1 Revision and interpretation of investment awards 2.2 Challenge of investment awards; annulment 2.3 Enforcement and execution of awards 2.4 State immunity and enforcement of awards

BIBLIOGRAPHY AND RESOURCES

Basic Bibliography

Text books (non-exhaustive)

 Coop, Graham / Ribeiro, Clarisse (Editor), Investment Protection and the Energy Charter Treaty, 2008

 Dolzer, Rudolf / Schreuer, Christoph, Principles of International Investment Law, 2008

 Dugan, Christopher / Wallace, Don / Rubins, Noah / Sabahi, Borzu, Investor-State Arbitration, 2008

 Horn, Norbert (Editor), Arbitrating Foreign Investment Disputes, 2004

 McLachlan, Campbell / Shore, Laurence / Weiniger, Matthew, International Investment Arbitration: Substantive Principles, 2008

 Newcombe, Andrew / Paradell, Lluís, Law and Practice of Investment Treaties, 2009  Reinisch, August, Standards of Investment Protection, 2008

 Ribeiro, Clarisse, Investment Arbitration and the Energy Charter Treaty, 2006  Salacuse, Jeswald W., The Law of Investment Treaties, 2010

 Schreuer, Christoph, The ICSID Convention: A Commentary, 2009

 Tietje, Christian (Editor), International Investment Protection and Arbitration, 2008  Weiler, Todd (Editor), International Investment Law and Arbitration, 2005

 Yannaca-Small, Katia, Arbitration under International Investment Agreements, 2010

Chapters of books (non-exhaustive)

 Claros Alegría, Pedro / Rueda García, José Ángel: “Spain”, in J. Fouret (Ed.), Enforcement of Investment Treaty Awards, London, 2015, pp. 403-416

Articles (non-exhaustive)

 Annacker, Claudia / Creig, Robert T., "State Immunity and Arbitration," 15(2) ICC Court of Arbitration Bulletin, Special Supplement 70-78 (2004)

 Commission, Jeffrey P., "Precedent in Investment Treaty Arbitration-A Citation Analysis of a Developing Jurisprudence," 24(2) Journal of International Arbitration 129-158 (2007)

 Tai-Heng Cheng, "Precedent and Control in Investment Treaty Arbitration," 30 Fordham Int'l Law Journal 1014-1049 (2007)

 Rueda García, José Ángel, “Provisional Measures in Investment Arbitration: Recent Experiences in Oil Arbitrations Against the Republic of Ecuador”, Transnational Dispute Management, Vol. 6, Issue 1, March 2009, at www.transnational-dispute-management.com

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4 Websites (free access unless otherwise stated)

International Centre for Settlement of Investment Disputes (ICSID): https://icsid.worldbank.org Permanent Court of Arbitration (PCA): www.pca-cpa.org

United Nations Commission for International Trade Law (UNCITRAL): www.uncitral.org Arbitration Institute of the Stockholm Chamber of Commerce (SCC): www.sccinstitute.com International Court of Arbitration of the International Chamber of Commerce (ICC): www.iccwbo.org

London Court of International Arbitration (LCIA): www.lcia.org International Court of Justice (ICJ): www.icj-cij.org

Investment Treaty Arbitration: www.italaw.com NAFTA Claims: www.naftaclaims.com

Investment Claim (payment access): www.investmentclaims.com

Investor-State Law Guide (payment access): www.investorstatelawguide.com

Transnational Dispute Management (payment access):

www.transnational-dispute-management.com Notes

To be indicated during the course Other materials

To be indicated during the course, particularly case law Additional Bibliography

Text books

Chapters in books

Articles

Websites

Notes

Other material

TEACHING METHODOLOGY

General methodological aspects of the subject Contact hours methodology: Activities

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5 1 hour pre and/or after each class-session

Independent study methodology: Activities

Reading materials and self-preparation of answers to questions

SUMMARY OF STUDENT WORK HOURS

Activity

Number of class hours

Number of independent

study hours

Total number of

hours

Lecture 15

Practical class 5

Debate

In class presentation Individual work Work in collaboration

Evaluation: one minute paper Evaluation: class test

Evaluation: exam

Evaluation: exam review

Others 20 45 65

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6 GRADE EVALUATION AND CRITERIA

Evaluation Activities Generic Competences Indicators Evaluation

Weighting Individual work

Work in collaboration Ability to work together with fellow students

Unity of the work 10 %

Debate

Ability to discuss a topic, defend a position and counter-argue the opposite position

Coherent oral expression, correct use of the sources of knowledge to construe an argument, correct answer to questions posed by the professors or fellow students

10 %

Class presentation

Ability to explain one of the topics of the course

Coherent oral expression, correct use of the sources of knowledge to construe a presentation, correct answer to questions posed by the professors or fellow students

20 %

Evaluation: one minute paper

Evaluation: class test Evaluation: exam (final)

Demonstration of assimilation of the contents of the course

Correct answers to the questions formulated by the professors 50%

Attendance Demonstration of interest in the courses

Regular attendance to classes – control by signature of a daily sheet

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7 SUBJECT DETAILS

Data on the subject

Name Commercial Arbitration and Alternative Dispute Resolution: (International Commercial Arbitration)

Degree Postgraduate in Master in International and European Business Law

Year 2015-16

Nature Fall

ECTS Credits 1

Department Law

Area Law

Teaching staff Raquel Mendieta Grande

Data on the teaching staff

Teaching staff Raquel Mendieta Grande e-mail raquel.mendieta@ashurst.com Telephone 00 34 91 364 98 00

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8 Office Ashurst LLP, calle Alcalá, 44, 4º, 28014 - Madrid

Tutoring Schedule Upon request from students

SPECIFIC DATA ON THE SUBJECT

Pre-requisites None

Contribution of the degree to the professional profile

Dispute Resolution is an area of increasing activity. International Commercial Arbitration is one of the areas of most important growth, especially in a global economy. The importance of the different rules and the implications of the different venues makes essential to know the implications of every detail to advise properly in the disputes world.

COMPETENCES TO BE IMPROVED

Generic competences Instrumental

To draft legal documents

To present arguments convincingly

Interpersonal

To be part of a team developing a team work To lead a team when necessary

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9 Systemic

To understand complex issues

To divide complex issues in a number of more simple items

Specific competences of the subject Conceptual (knowing)

Basic concepts of ADR and arbitration

Procedural (doing)

Different laws and rules of arbitration

Professional (knowing how)

To be able to analyse an arbitration case, the different available strategies, applicable procedures and being able to defend a case orally and in writing

THEMATIC AREA AND CONTENT

AREA 1: ARBITRATION FRAMEWORK Theme 1: INTRODUCTION

1.1 ADR; different mechanisms 1.2 Concept of arbitration 1.3 Pros and cons of arbitration 1.4 Ad hoc and institutional arbitration 1.5 International Commercial Arbitration

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10 1.6 Foreign Investment disputes(ICSID). Cross reference

Theme 2: ARBITRATION LAW

2.1 Arbitration Law and Substance Law 2.2 UNCITRAL Model Law

2.3 England 2.4 France 2.5 Spain

2.6 Other jurisdictions

Theme 3: INTERNATIONAL NON LEGAL ARBITRATION RULES 3.1 UNCITRAL Arbitration Rules

3.2 Court of Arbitration Procedural Rules  ICC

 LCIA  CAM

3.3. Arbitration Soft Law (IBA Rules etc)

AREA 2: COMMERCIAL ARBITRATION PRACTICE

Theme 1: ARBITRATION CLAUSE, FORUM AND PROCEDURAL RULES 1.1 Arbitration clause

1.2 Forum/venue 1.3. Procedural rules 1.4. Multi-Party Arbitration Theme 2: ARBITRATORS

2.1 Number of Arbitrators: sole arbitrator or Arbitration Tribunal 2.2 Impartiality and independence of arbitrators

2.3 Ex party arbitrators and Chairperson 2.4 Challenge of Arbitrators

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11 2.5 Decision making process

Theme 3: KEY PROCEDURAL ISSUES 3.1 Appointment of arbitrators

3.2 Kompetenz-Kompetenz principle 3.3 Submission by the parties 3.4 Taking of Evidence

3.5. Award: different types and content 3.6 Challenge/annulment of awards

Theme 4: ENFORCEMENT OF ARBITRATION AWARDS 4.1 Domestic enforcement

4.2 International enforcement: NY Convention

BIBLIOGRAPHY AND RESOURCES

Basic Bibliography Text books

Redfern and Hunter on International Arbitration (5th edition)

This is available in print and online (Georgetown Law Only) with most of the materials in the

print version reproduced. To access the online version once you are in KluwerArbitration.com,

click on the "Books" tab and then scroll down to select "Redfern and Hunter on International

Arbitration, Blackaby, Partasides, et al. (2009)." This is the newest edition of this seminal

commentary; it covers from the drafting of the arbitration agreement to the enforcement of

arbitral awards. This updated edition includes a more in-depth analysis of investment treaty

arbitration and international arbitration. This edition also has more information on the law and

practice of international arbitration in the United States, Latin America, China and India, along

with its coverage of the U.K. and EU.

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12 Chapters of books

Articles

Spain Arbitration Review Websites

www.kluwerarbitration.com www.iccwbo.org/court www.lcia.org

www.clubarbitraje.com

www.arbitramadrid.com/web/corte/home/

Notes

Other material

UNCITRAL Model Law UNCITRAL Arbitration Rules

IBA Guidelines on Conflict of Interest in International Arbitration IBA Rules on the Taking of Evidence in International Arbitration IBA Guidelines on Party Representation in International Arbitration NY Convention

International Law Association Recommendation on Public Policy ICC Rules 2012

LCIA Rules Additional Bibliography Text books

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13 Chapters in books

Articles

Websites

Notes

Other material

TEACHING METHODOLOGY

General methodological aspects of the subject Contact hours methodology: Activities

Lecture (5 hours)

Cases (5 hours, including 2,5 for individual exam) Independent study methodology: Activities

Preparation of the cases Reading materials

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14 SUMMARY OF STUDENT WORK HOURS

Activity

Number of class hours

Number of independent

study hours

Total number of

hours

Lecture 5 25 8

Practical class 2,5 2,5

Debate

In class presentation Individual work Work in collaboration

Evaluation: one minute paper Evaluation: class test

Evaluation: exam 2,5 5

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15 Others

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16 GRADE EVALUATION AND CRITERIA

Evaluation Activities Generic Competences Indicators Evaluation

Weighting

Individual work

Interest Participation

Awareness of key issues

Making good questions Being proactive

Provide good solution to the different issues

25%

Work in collaboration Debate

Class presentation Evaluation: one minute paper

Evaluation: class test 15%

Evaluation: exam (final)

Drafting legal documents Presenting a good case

Correcting drafting and paper structure and presentation Correct reasoning

Convincing tribunal (teacher)

50%

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